U.S. v. RASPBERRY

The opinion of the court was delivered by: JAMES ROBERTSON, District Judge

MEMORANDUM ORDER

Defendant Joseph Raspberry moves to suppress physical evidence found
by police officers and statements made to them during the officers'
search of his residence and of a vehicle parked outside, on August 23,
2003, and the following morning. The motion [#8] is GRANTED.

On August 23, 2003, Officer Spencer from the Metropolitan Police
Department responded to an "unwanted guest" call from 2125 4th Street,
N.W., Apartment # 414. When Officer Spencer arrived at the building, the
D.C. Housing Authority security guard for the building was not present,
so he proceeded directly to the apartment. When he arrived, the defendant
was standing in the hallway. The defendant informed the officer that he
had an unwanted guest in the apartment who was barred from the building,
who had tricked her way into the apartment under false pretenses and who
would not leave. With the defendant remaining outside, the officer
entered the apartment and spoke with the guest, later identified as
Lynette Naylor.
Page 2

Ms. Naylor appeared agitated and slightly inebriated. She told the
officer that she lived in the apartment and that she was the defendant's
girlfriend. She also said that the defendant had assaulted her and that
he had broken a key in the doorway during a struggle. Officer Spencer
examined Ms. Naylor and the door and told Ms. Naylor that he saw no signs
of a struggle and that Raspberry was not going to jail. Ms. Naylor then
said that the defendant had a gun in the bedroom under the bed. Officer
Spencer asked Ms. Naylor for evidence that she had authority to consent
to a search of the apartment because it had been reported to him that she
was barred from the apartment and did not live there. She led the officer
to the bathroom, where she showed him a few female toiletry items. When
Officer Spencer said that was not enough, she showed him a few items of
female clothing that were mixed in with defendant's neatly stacked
clothing along the wall of the bedroom. When the officer said that this
was still not enough, Ms. Naylor produced a piece of mail matter from the
agency that distributes food stamps in the District of Columbia. This was
a form letter dated July 18, 2003, and addressed to Ms. Naylor at 2125
4th Street, N.W., Apt. # 414. The officer was satisfied by this letter,
because, in his experience, food stamps are the same as cash, and the
food stamp agency investigates an individual's address carefully before
sending them. At some time thereafter, Raspberry told the officer that he
had confirmed Ms.
Page 3
Naylor's residence at the apartment with the food stamp agency
prior to the issuance of the letter.

At that point, Officer Spencer took a chair into the hallway, where
another officer, Officer Gunnels, was present. Officer Spencer handcuffed
the defendant and asked him to sit in the chair because there might be
more to the issue than an "unwanted guest." Officer Gunnels patted
Raspberry down. Officer Spencer told the defendant that he was not under
arrest, but that he was being forcibly stopped and that he had been
placed in handcuffs for officer safety purposes. Officer Spencer called
for police department detectives to assist him. Then, he began to look
for the weapon Ms. Naylor assured him he would find. When he found
nothing under the bed, Ms. Naylor directed him to a closet. When he found
nothing there, she told him to look under the mattress. There Officer
Spencer found a box of. 380 caliber ammunition.

Sometime thereafter, two detectives, Detectives Swinson and McGee,
arrived. Ms. Naylor told Officer Spencer and Detective McGee that
Raspberry had two cars in the parking lot outside and that the gun might
be in one of them. Detective Swinson testified that Raspberry orally
consented to a search of the apartment and the two cars, both voluntarily
(after hearing Ms. Naylor's loud accusations against him through the ajar
apartment door as Officer Spencer was searching his apartment)
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and in response to the detective's questions. Officer Spencer also
said that Detective Swinson told him to write up a consent for search in
his notebook for Raspberry and Ms. Naylor to sign. The detectives left to
search the cars while Officer Spencer got the written consents from
Raspberry and Ms. Naylor. Thereafter, the detectives called Officer
Spencer and told him they had found a gun, a. 380 caliber Davis
semi-automatic pistol, in one of the cars. Additional. 380 caliber
ammunition also was retrieved from a bag in the apartment's hallway
closet.

1. Ms. Naylor's authority to consent to the search of the
apartment.

Officer Spencer took considerable care to determine whether Ms. Naylor
had authority to consent to his search of the apartment. He was right to
do so. "As with other factual determinations bearing upon search and
seizure, determination of consent to enter must be judged against an
objective standard: would the facts available to the officer at the
moment . . . warrant a man of reasonable caution in the belief that
the consenting party had authority over the premises?" Illinois v.
Rodriguez, 497 U.S. 177, 188-89 (1990) (quoting Terry v.
Ohio, 392 U.S. 1, 21-22 (1968) (internal quotation marks omitted));
see also United States v. Whitfield, 939 F.2d 1071, 1073-74
(D.C. Cir. 1991). "If not, then warrantless entry without further inquiry
is unlawful unless authority actually exists[; b]ut if
Page 5
so, the search is valid." Rodriguez, 497 U.S. at 188-89.
"[T]he authority which justifies the third-party consent . . . rests
. . . on mutual use of the property by persons generally having joint
access or control for most purposes, so that it is reasonable to
recognize that any of the co-inhabitants has the right to permit the
inspection in his own right and that the others have assumed the risk
that one of their number might permit the common area to be searched."
United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974)
(internal citations omitted).

I find Officer Spencer's testimony credible in all respects, but I find
his belief that Ms. Naylor had authority to consent to the search
objectively unreasonable. Officer Spencer found a few female toiletries
that could have been left behind the apartment after a departure, a few
articles of female clothing (not in drawers or hanging in the closet)
that were mixed in with the defendant's neatly piled clothing, and a
letter bearing Ms. Naylor's name and the address of the apartment.

That information, considered in the context of the "unwelcome guest"
call, Ms. Naylor's agitation and inebriation, and her unreliable
statements to him about a struggle, were not enough for Officer Spencer
to conclude that Ms. Naylor had "mutual use" of the apartment. The
letter, the key piece of information relied on by Officer Spencer in
finding authority to consent, was over a month old. The officer did not
ask for
Page 6
additional mail matter, a driver's license, or any other
information that might confirm Ms. Naylor's statements that she was then
still residing with the defendant in the apartment.

2. Defendant's purported authority to search the apartment and
the vehicles.

Officer Spencer found ammunition under the defendant's bed and
proceeded to forcefully detain the defendant with handcuffs. Thereafter,
the defendant consented verbally and in writing to a search of his
apartment and of the two vehicles outside. The question the Court must
ask, therefore, is whether the defendant's oral and written consent was
voluntary and sufficient to render lawful this otherwise unlawful search.
"Words or acts that would show consent in some circumstances do not show
it in others. `Non-resistance to the orders or suggestions of the police
is not infrequent . . .; true consent, free of fear or pressure, is
not so readily to be found.'" Higgins v. United States.
209 F.2d 819, 820 (D.C. Cir. 1954) (quoting Judd v. United States,
190 F.2d 649, 651 (D.C. Cir. 1951). As the B.C. Circuit explained,

[i]f a valid confession precedes a search by
police, permission may show true consent to the
search. That was the situation in United
States v. Mitchell, [322 U.S. 65 (1944)], on
which appellee relies. But no sane man who denies
his guilt would actually be willing that policemen
search his room for contraband which is certain to
be discovered. It follows that when police
identify themselves as such, search a room, and
find contraband in it, the occupant's words or
signs of acquiescence in the search, accompanied
by denial of guilt, do not show consent; at least
in the absence of
Page 7
some extraordinary circumstance, such as
ignorance that contraband is present.

Id. As in Higgins, which remains good law in this
Circuit, no such circumstance is shown here. At the time he gave consent,
Raspberry had three policemen attending him, was handcuffed and was
sitting down outside his apartment. Accordingly, even crediting the
officers' testimony, the record does not support a finding that the
defendant voluntarily and freely consented to the search.

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